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Gonder v. State

Superior Court of Rhode Island, Providence

July 17, 2019

ROBERT GONDER
v.
STATE OF RHODE ISLAND

          For Plaintiff: Glenn S. Sparr, Esq.

          For Defendant: Judy Davis, Esq.

          DECISION

          K. RODGERS, J.

         Before this Court is Robert Gonder's (Petitioner) Application for Post-Conviction Relief (Application). Petitioner asserts that his conviction should be vacated because the statute under which he was convicted in State of Rhode Island v. Robert O. Gonder, P1-1994-1170A (the underlying criminal case) is unconstitutional in that it fails to describe a crime and prescribe a penalty therein.

         This Court's jurisdiction is pursuant to G.L. 1956 § 10-9.1-1. Having reviewed the parties' memoranda, and for the reasons set forth below, this Court finds that Petitioner's conviction was not unconstitutional. Accordingly, Petitioner's Application is denied.

         I

         Facts and Travel

         On April 15, 1994, Petitioner was indicted on one count of murder under G.L. 1956 § 11-23-1, which was alleged to have occurred on March 8, 1994. On May 11, 1994, the State provided notice to Petitioner that, in the event Petitioner was convicted of murder, a recommendation would be made that Petitioner be sentenced to life without parole pursuant to § 11-37-2 and G.L. 1956 § 12-19.2-1. On February 13, 1995, in exchange for the State's agreement to withdraw its recommendation of life without parole, Petitioner pled guilty to the single count of murder in the first degree and was sentenced to life imprisonment at the Adult Correctional Institutions (ACI).

         On January 24, 1996, Petitioner filed a previous Application for Post-Conviction Relief alleging that he was denied effective assistance of counsel. Robert Gonder v. State, PM-1996-0356. On May 21, 2001, the trial justice denied Petitioner's application without holding an evidentiary hearing. Petitioner appealed to the Supreme Court and, on December 4, 2002, the Supreme Court vacated the order denying Petitioner's application and remanded the case to this Court for a hearing. Gonder v. State, 935 A.2d 82, 84 (R.I. 2007). On remand, Petitioner amended his application to include additional allegations of ineffective assistance of counsel. Id. On December 16, 2004, the trial justice again denied Petitioner's application. Id. Petitioner sought review of this decision, and, on November 16, 2007, the Supreme Court affirmed. Id. at 91.

         On December 18, 2018, Petitioner filed the instant pro se Application for Post-Conviction Relief, together with a supporting memorandum asking this Court to vacate his conviction for first degree murder in the underlying criminal case, alleging that his conviction is unconstitutional.

         With the agreement of the Attorney General and by Order dated February 22, 2019, this Court limited all arguments[1] to "the constitutionality of a criminal statute which allegedly fails to state what constitutes the crime alleged and/or fails to provide for a penalty thereunder," without the State raising the affirmative defenses of res judicata and/or laches.

         On May 3, 2019, Petitioner's court-appointed counsel filed a Supplemental Memorandum in Support of Petitioner's Application for Post-Conviction Relief. The State filed an objection and supporting memorandum thereto on May 20, 2019. On May 24, 2019, the Court provided notice to the State and Petitioner's court-appointed counsel that Petitioner's request for relief would be considered by this Court in the context of a summary disposition. The parties thereafter acknowledged that an evidentiary hearing was unnecessary to resolve the issues before this Court.

         II

         Standard of Review

         Under § 10-9.1-1, any person who has been convicted of a crime may file an application for post-conviction relief to challenge the constitutionality of his or her conviction. Sec. 10-9.1-1(a)(1). Unlike the proceedings afforded to Petitioner for his underlying conviction, post-conviction relief motions are civil in nature. Brown v. State, 32 A.3d 901, 908 (R.I. 2011). Accordingly, the applicant bears "'the burden of proving, by a preponderance of the evidence, that such [postconviction] relief is warranted.'" Motyka v. State, 172 A.3d 1203, 1205 (R.I. 2017) (quoting Anderson v. State, 45 A.3d 594, 601 (R.I. 2012)). Additionally, because Petitioner challenges the constitutionality of his conviction, Petitioner has the heightened burden of demonstrating unconstitutionality beyond a reasonable doubt. See State v. Beck, 114 R.I. 74, 77, 329 A.2d 190, 193 (1974).

         When ruling on an application for post-conviction relief, if the court considers matters outside the pleadings, the court should "treat the [party's] motion as though it were a motion for summary disposition" as opposed to a motion to dismiss. Palmigiano v. State, 120 R.I. 402, 406, 387 A.2d 1382, 1385 (1978). As will be discussed, this Court has considered Petitioner's indictment, the State's notice of its recommendation of life without parole pursuant to §§ 11-23-1 and 12-19.2-1, and Petitioner's plea form, which are outside the pleadings in the instant civil action. Accordingly, this Court will review Petitioner's Application in the context of a summary disposition motion under § 10-9.1-6(c), which "'closely resembles' a grant of summary judgment under Rule 56 of the Superior Court Rules of Civil Procedure." Reyes v. State, 141 A.3d 644, 652 (R.I. 2016) (quoting Palmigiano, 120 R.I. at 405, 387 A.2d at 1384).

         Under § 10-9.1-6(c), the court may grant summary disposition when it finds, based on "the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Sec. 10-9.1-6(c). The standard for granting summary disposition on an application for post-conviction relief is the same as in granting summary judgment under Super. R. Civ. P. 56(c)-the "trial justice must consider the affidavits and pleadings . . . in the light most favorable to the party against whom the motion is made." Palmigiano, 120 R.I. at 406, 387 A.2d at 1385. The trial justice may not resolve genuine issues of material fact or adjudge the weight or credibility of the evidence. Reyes, 141 A.3d at 653.

         III

Analysis

         Petitioner asserts that his conviction violated his due process rights under both the Fifth and Fourteenth Amendments of the United States Constitution and article I, section 10 of the

         Rhode Island Constitution because the single statute of conviction, § 11-23-1, fails to state what conduct qualifies as a crime and fails to provide a penalty. In response, the State contends that Petitioner cannot prove that § 11-23-1 is unconstitutional beyond a reasonable doubt because Chapter 23 of Title 11 of the Rhode Island General Laws, when read as a whole, clearly and unambiguously provides a description of the criminalized conduct and states a penalty.

         Petitioner was convicted of one count of first degree murder in violation of § ...


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